Mary Rivard v. Governor, State of New Hampshire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0457, Mary Rivard v. Governor, State of
New Hampshire, the court on November 23, 2021, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, Mary Rivard d/b/a The Color Café Hair Salon, appeals an order of the
Superior Court (Kissinger, J.) dismissing her action against the defendant,
Christopher T. Sununu in his official capacity as Governor of the State of New
Hampshire (the Governor), challenging certain executive and emergency orders
and the statutes under which they were promulgated. We dismiss the appeal
as moot.

The following facts were recited by the trial court or relate the contents of
documents in the record. On March 13, 2020, “by the authority vested in [him]
pursuant to part II, article 41 of the New Hampshire Constitution and New
Hampshire RSA 4:45,” the Governor issued Executive Order 2020-04 declaring
a state of emergency throughout the state due to COVID-19. Executive Order
2020-04, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020
-04.pdf (last checked November 22, 2021). Executive Order 2020-04 stated
that while that order was in effect, “additional temporary orders, directives,
rules and regulations may be issued” pursuant to RSA 4:45 and RSA 4:47.”
Id.; see RSA 4:45 (2020) (amended 2021), :47 (2020).

On March 26, 2020, the Governor issued Emergency Order #17, which
ordered all businesses and organizations not providing essential services to
cease in-person operations and “close their physical workplaces and facilities to
workers, customers, and the public,” beginning on March 27, 2020, and
continuing until May 4, 2020. Emergency Order #17 Pursuant to Executive
Order 2020-04, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer
gency-order-17.pdf (last checked November 22, 2021). An exhibit to the
emergency order listed the services considered essential. EXHIBIT A to
Emergency Order #17, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer
gency-order-17-ex-a.pdf (last checked November 22, 2021). The list did not
include hair salons.
 The plaintiff owns and operates a hair salon and skin care center in New
London. The day after Emergency Order #17 issued, the plaintiff shut down
her salon.

By subsequent executive orders, the Governor extended the state of
emergency declared in Executive Order 2020-04. See, e.g, Executive Order
2020-08, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020
-08.pdf (last checked November 22, 2021); Executive Order 2020-09, available
at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020
-09.pdf (last checked November 22, 2021); Executive Order 2020-10, available
at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020
-10.pdf (last checked November 22, 2021). On May 1, 2020, the Governor
issued Emergency Order #40 extending and modifying Emergency Order #17.
Emergency Order #40 Pursuant to Executive Order 2020-04 as extended by
Executive Orders 2020-05 and 2020-08, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer
gency-order-40.pdf (last checked November 22, 2021). That order permitted
certain businesses, including hair salons, to resume in-person operations,
provided that they adhere to certain guidelines. See EXHIBIT D to Emergency
Order #40, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/files/inline-
documents/emergency-order-40-ex-d.pdf (last checked November 22, 2021).
Emergency Order #40 was subsequently extended by Emergency Order #49.
See Emergency Order #49 Pursuant to Executive Order 2020-04 as extended
by Executive Orders 2020-05, 2020-08, and 2020-09, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer
gency-order-49.pdf (last checked November 22, 2021). The plaintiff alleges that
the guidelines in Emergency Order #40 and #49 “do not permit her to operate
her business properly or in a realistic way.”

On May 11, 2020, the plaintiff instituted this action challenging
Executive Order 2020-08 and Emergency Order #40. She was later allowed to
amend her complaint to challenge the subsequent extensions of those orders
and to add a new count. As amended, her complaint sought a declaratory
judgment that: (1) “RSA 4:45 and 4:47 constitute an unconstitutional
delegation of legislative power by the New Hampshire legislature in violation of
Part 1, Articles 7, 8, 29, and 37, and Part 2, Article 5 of the New Hampshire
Constitution”; (2) Executive Orders 2020-08, 2020-09, 2020-10 and Emergency
Order #49 are not valid exercises of the Governor’s authority under RSA 4:45
and RSA 4:47, as applicable, and, therefore, are null and void; and (3)
“Emergency Order #49 is null and void because it violates the equal protection
and takings clauses of the New Hampshire Constitution. See N.H. CONST. pt.
I, arts. 2, 12. The amended complaint also sought an injunction against the

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enforcement of the challenged statutes, executive orders, and emergency orders
and the issuance of further such executive or emergency orders, as well as
damages for violation of the equal protection and takings clauses of the New
Hampshire Constitution.

The Governor moved to dismiss the plaintiff’s complaint for failure to
state a claim, which the trial court granted. The plaintiff filed a motion for
reconsideration, which the trial court denied. The plaintiff now appeals,
challenging the trial court’s dismissal of her unlawful delegation claim, and her
requests for declaratory judgment and injunctive relief on the ground that the
applicable executive and emergency orders are not valid exercises of the
Governor’s authority under RSA 4:45 and RSA 4:47. The plaintiff has not
appealed the dismissal of her equal protection and takings claims.

After full briefing of the issues on appeal, the legislature passed, and the
Governor signed into law, Laws 2021, chapter 91. Among other things, that
legislation amended RSA 4:45. See Laws 2021, 91:459-:462-a. Accordingly, on
July 21, 2021, we ordered the parties to file supplemental memoranda of law
“addressing the impact, if any, of the recent amendment to RSA 4:45” upon the
arguments set forth in Section II of the plaintiff’s brief” (unconstitutional
delegation of power argument). Upon review of the parties’ supplemental
memoranda, we agree with the Governor that the entire case should be
dismissed as moot.

“Generally a matter is moot when it no longer presents a justiciable
controversy because issues involved have become academic or
dead.” Londonderry Sch. Dist. v. State, 157 N.H. 734, 736 (2008) (quotation
and ellipsis omitted). “A challenge seeking only prospective or declaratory relief
is generally mooted where intervening legislative activity renders the prior law
inapplicable.” Id.

Here, the plaintiff challenges only the dismissal of her claims for
declaratory and injunctive relief; she does not appeal the dismissal of the
claims for which she sought damages. The state of emergency underlying this
case has expired and the only questions on appeal challenge the
constitutionality of, and seek interpretation of the scope of the Governor’s
authority under, a prior version of RSA 4:45. Accordingly, all issues before us
“have become academic or dead.” Id. at 736 (quotation omitted); see Real
Estate Planners v. Town of Newmarket, 134 N.H. 696, 698, 701 (1991) (holding
that petition for declaratory judgment challenging amendments to a zoning
ordinance became moot when a subsequent validly-enacted ordinance
superseded those amendments). Nor does this case involve any of the
circumstances under which we might exercise our discretion to address an
issue that is otherwise moot, such as “where there is a pressing public interest
involved or future litigation may be avoided,” In re Guardianship of R.A., 155
N.H. 98, 101 (2007) (statutory amendment rendered issue moot), or where the

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case “presents an issue capable of repetition, yet evading review,” Fischer v.
Superintendent, Strafford County House of Corrections, 163 N.H. 515, 518
(2012) (quotation omitted). Accordingly, we dismiss the plaintiff’s appeal as
moot.

Dismissed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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